Legal mindfield

Jonathan Rayner looks at why lawyers fear the government's proposed amended version of the Mental Health Act. Meanwhile Frances Mayne explains how lawyers should prepare for the Mental Capacity Act


There appears to be a huge gulf in attitude between mental health lawyers and government legislators. On the one side, there is the drive to improve frontline services and treat patients with respect for their human rights and dignity. On the other side, critics see a ‘compulsion’ and a proposed legislative framework that they think will punish the mentally ill for being, well, mentally ill.



This gulf is encapsulated in an exchange that took place in 2005. The Joint Parliamentary Scrutiny Committee wrote in its report on the draft Mental Health Bill 2004 that the purpose of the Bill was to ‘improve services and safeguards to patients and to reduce the stigma of mental disorder’. The government disagreed, stating in its response to the report that, on the contrary, ‘the Bill is not about service provision. It is about the legal processes for bringing people under compulsion’.



And there you have it, two irreconcilable views and an insight into why the government – flying in the face of legal and medical advice – is determined to steamroll through its third attempt at a revised Mental Health Act.



The process started in 1998, a year after New Labour came to power, when the Richardson Committee proposed a new Act that would provide for compulsory treatment of the mentally ill, whether in hospital or the community. There followed 2002 and 2004 draft Bills, which were condemned for riding roughshod over patients’ care and civil liberties in the interests – or so it was intended – of protecting the public.



In March 2006, the government abandoned its by-then eight-year attempt to achieve a new Act and instead announced plans to introduce an amended version of the Mental Health Act 1983. This amended version, however, still pandered for what some lawyers have branded ‘Daily Mail hysteria’, which holds – despite evidence to the contrary – that mentally ill patients are a danger to society and should be restrained.



Accordingly, the amended law contains provisions for detaining and treating patients against their will, even if there is no medical benefit to be gained from the treatment. It also endorses compulsory treatment orders (CTOs), which some lawyers have dubbed ‘psychiatric ASBOs’ because the conditions imposed upon patients are similar to the punitive measures imposed upon those who receive anti-social behaviour orders.



The House of Lords last month suggested six amendments to key areas of the Bill, all of which were welcomed by mental health lawyers and other professionals in the field. However, the indications are that the government will disregard these and press on regardless. And so the battle lines are drawn.



Health minister Rosie Winterton recently told a Local Government Association conference on the Mental Health Bill that she was deeply concerned about the House of Lords’ amendments. She said: ‘We believe the present law can deny treatment to those who are in urgent need of it. We want to modernise the law to remove these obstacles both for community-based and hospital treatment for the good of patients themselves and to better protect the public. But the peers have seriously weakened our plans.’



She added: ‘Every year, mental health patients commit around 50 homicides. Often, these are preceded by a reluctance to continue taking the treatment that would keep them well.’



Emma Jones, who heads the legal team at mental health charity Mind, says the government’s decision to push ahead with the Bill ‘could have been characterised as knee jerk – if it hadn’t taken so long getting here’. She asks: ‘Why is this government perpetuating the myth that mentally ill individuals are dangerous and should be locked up to protect society?’



She adds that investigations into the circumstances surrounding murders committed by the mentally ill show that legislation alone would never have prevented the tragedies. ‘The problem in all these cases concerned failures in services; either the failure to provide services or a failure in communication between services. That’s where the government should be focusing resources – on frontline services, not on criminalising mental ill-health.’



So what is it about the proposed amended Act that makes Ms Jones’ blood boil? She replies: ‘The whole of it is a massive disappointment – there are so many opportunities missed. And it won’t be reviewed now for another 25-30 years.’ She lists the Bill’s weaknesses: ‘Its Big Brother stance is going to tie up doctors with red tape. It’ll be unworkable in rural areas because the population is too thinly-spread for adequate supervision. It will adversely affect black and minority ethnic patients, who the statistics show are disproportionately likely to come to the attention of the mental health services. And there’s a real danger that the fear of CTOs could drive people away from voluntarily seeing their GP.’



Richard Charlton, chairman of the Mental Health Lawyers Association (MHLA) and a partner at London firm Kaim Todner, agrees. He says: ‘The thrust of the government’s legislation is almost entirely misplaced and is going to make it cost more to make society less safe.’



He argues that investment in providing improved frontline services – such as community psychiatric nurses, doctors and facilities – is the cost-effective way to ensure mentally ill people are a danger neither to others nor themselves. ‘Passing laws to compel ill people to do things simply intimidates and alienates them, and makes them nervous of seeing their GP in case he imposes some further punishment on them. We need a therapeutic alliance based on trust, not on the fear and compulsion of CTOs.’



Mr Charlton, a member of the Law Society’s mental health and disability committee, points to research into the use of CTOs and other similar schemes overseas that showed they have no impact on levels of crime committed by the mentally unwell. He says: ‘For the government to claim otherwise is misrepresentation.’



He adds that the rapid erosion of legal aid provision, with more and more lawyers giving up publicly-funded work, can only make things worse for all vulnerable people – including the mentally ill.



Tim Spencer-Lane, formerly a mental health solicitor and social worker, and now a policy adviser at the Law Society, welcomes the amendments to the Bill suggested by the House of Lords – but is pessimistic about their ever becoming part of the new Act.



He says: ‘The Society lobbied hard for the changes proposed by the Lords. We argued for retaining the “treatability test” to ensure there’s a medical benefit to the treatment, but the government seems determined to abolish it. We also want to make CTOs more patient-friendly and less like, to coin a phrase, psychiatric ASBOs. These are vulnerable people with a medical condition, not criminals or anti-social hooligans.’



Professor Louis Appleby, national clinical director for mental health, says CTOs are the key to solving the problem of 'revolving door' patients who are constantly discharged from and readmitted to hospital.



He says the government has approved a £500,000 research grant into CTOs to give clinicians the detailed information they required to get the treatment to the patients most at need.



Mr Spencer-Lane adds that the Bill does nothing to make it faster and easier to transfer mentally unwell people from prison to hospital. ‘The result is hybrid prisons of criminals and the mentally ill – vulnerable people in a ghetto within a prison.’



Lucy Scott-Moncrieff, a partner in London firm Scott-Moncrieff & Harbour and also a member of the Law Society committee, proposes a common-sense solution to the controversy surrounding mental health legislation: ‘We need fewer policies, directives and forms, less time ticking boxes, and more time spent listening to clients.’



She observes that the government has put money into researching what works and identifying, as an NHS priority, the crucial importance of ‘engagement’ or co-ordination between the various providers of frontline services. Ms Scott-Moncrieff adds: ‘Meanwhile, in a different part of the forest, where mental health has taken on mythic status, the government is pushing through this appalling legislation. Do you know what’s most obnoxious about it? Under the proposed amended Act, people who lack capacity can be detained and treated against their will, whereas every other illness gives you choice.



‘But what really emphasises how much mental health has been demonised is that the detained patients are to be means-tested so they can pay for the privilege.’



It looks likely that the government is going to persevere with its proposed mental health legislation. Lawyers can only hope that the Human Rights Act, along with a growing body of case law, will, in time, soften the more Draconian elements of what eventually makes it to the statute book.





Putting the client’s welfare first where capacity is an issue



Lawyers need to make sure they are well prepared for the new mental capacity act, writes Frances Mayne



Learning new ‘justification’ skills is going to form an important part of a lawyer’s role when the Mental Capacity Act 2005 is implemented later this year.



This applies not only to those practitioners dealing with the elderly or even just to those in private client practice, but across the board, from conveyancers to litigators. The recently published Code of Practice explains how the Act will operate and offers examples of best practice as a guide.



Paid carers, professionals, attorneys and deputies are under a formal duty to pay regard to the code, and it will have a major impact on solicitors acting for individuals making decisions where capacity may be an issue.



It is also relevant where we act on behalf of incapacitated individuals as receivers, attorneys under enduring powers of attorney (EPAs) or as deputies or attorneys under lasting powers of attorney (LPAs) after 1 October 2007.



All of us need to be familiar with the principles of mental capacity set out in sections 1 to 4 of the Act as they will need to be applied in many different situations.



Staff training will ensure that we manage the potential risk to the practice in those areas where the Act may impact. For example, our conveyancers need to be aware of the situation when a client signs a contract to buy or sell a house, and be vigilant where an EPA or LPA is being used in that situation.



The code also contains advice regarding completion of the new LPA. It specifically mentions that anyone asked to be an attorney should ‘consider whether they have the skills and ability to act as an attorney’ and ‘ask themselves whether they actually want to be an attorney and take on the duties and responsibilities of the role’.



We have particular concerns arising from this guidance, believing that only in very limited circumstances should one of our partners or staff be appointed attorney under a personal welfare LPA. It is rare that a professional will know their client so well as to be able to consider their wishes, religious and ethical beliefs, and make decisions about their client’s personal welfare and healthcare which could put the professional in conflict with the client’s family, carer or doctors.



We also consider that we should not act under a property and affairs LPA unless we are confident that we have sufficient knowledge of the client’s financial position, family circumstances and particular interests in order to be able to judge what is in the client’s ‘best interests’ when exercising the powers given by an LPA.



The cost of LPAs is also concerning. The documents as drafted, one for personal and welfare and one for property and financial affairs, are longer and more complex than the EPA that everyone is familiar with. To ensure that both the person making the LPA and their attorney understands the document, its implications and the powers and duties granted, will take time and hence greater expense than the preparation of an EPA. There is also now a registration fee to pay to the Public Guardian before the document can be used – not currently the case with an EPA.



An LPA must contain a certificate provider’s statement, completed by either a person who has known the individual creating the LPA for two years or by a person within a list of descriptions stipulated in the document, who is not also a relative or carer of the donor. This can, interestingly, be a social worker, a librarian or a shopkeeper. These people, or ‘certificate providers’, will have to form an opinion on whether the individual understands the purpose of the LPA and the scope of the authority they are giving to the attorney, and also whether fraud or undue pressure is being used to make the donor create the LPA.



Implicit in this is that the certificate provider understands the scope of the Act and the code. This is hard to imagine. As a professional being asked to provide the certificate, we cannot envisage doing so without making a charge as, in our opinion, it would be necessary to spend a reasonable period of time with the donor on their own to check their understanding of the document and its provisions and the background to its creation.



This aspect of the LPA can leave an elderly or vulnerable individual open to pressure to create an LPA in favour of an unscrupulous individual who can find two other unscrupulous people willing to complete the certificate. This would subsequently do away with the necessity for anyone to be notified of the application to register the LPA with the Public Guardian. This is clearly a worrying development for families.



As institutions receiving a registered LPA will have no way of knowing whether the donor of it is mentally incapacitated or not – unless they make further enquiries – we can also envisage problems with the day-to-day administration under an LPA, even if it has been prepared properly and is being exercised within the scope of the attorney’s powers and duties under the Act and code.



We urge all practitioners to be prepared and to give careful consideration to the way they check their client’s capacity in making all decisions after October this year. Learn your new ‘justification’ skills well.



Frances Mayne is head of probate at Salisbury firm Wilsons